All your © are belong to us, part 2

How might ECL change the copyright licensing system?

The principle of copyright in WIPO countries is that creators own the rights to their creations. This inherent right is immediate and requires no further action by the creator.

For 10 years I have advised musicians and composers about the complexities of the music industry on that basis. Don’t panic, you own your stuff and until you decide nothing can legally happen to your work unless you say so.

Now it can.

The government calls this extending collective licensing. Collective licensing is the traditional system whereby PPL, MCPS and PRS operate blanket licenses on behalf of their members. The extension proposed by the government allows collection societies to license non-members’ material without them joining.

That’s the opposite of what we have right now. The current situation is simple, there are 3 categories of content: public domain, rights administered by societies and rights held by individuals.

Collection societies have membership conditions new rights holders sometimes find hard to satisfy. Membership of a collection society is not a given. That is the opposite of what is proposed—the whole system will be turned upside down. Details of government safeguards and other measures intended to make the system work even better than it used to are being published in stages. PPL and PRS are apparently interested in ECL.

My experience of big government projects suggests this may not turn out as hoped. We are told these changes are in the interest of consumers but the only group I see calling for them is Internet commerce—Google and their friends in the free content lobby. That fuels my scepticism. The whole basis of this change is that a substantial body of works whose rights owners are not members should be made available to consumers. Another way to look at it is that Internet commerce wants to enforce a license on otherwise unavailable content.

Changes 1: public domain, opt-ins and opt-outs

Instead of 3 simple categories the system must accommodate more.

Firstly, existing categories probably need some attention.

Public domain

As things stand there are various catalogues of public domain works but no central record. Some of these have been reintroduced to publishing as traditional arrangements (see Alan Price and House Of The Rising Sun). A world where all works have a defined status—previously only society members’ works did—means public domain works must be identifiable otherwise they are liable to be hoovered up by an ECL.

Society members

Society members are covered but even they need to keep an eye out. Many of them have work on public media sites, sometimes attached to non-members videos for example. There is nothing, other than vigilance, to stop these being appropriated by a new ECL society seeking legal repertoire for their clients—the web content lobby.

Secondly, creators who previously controlled their rights by default need to be codified.

Deliberate non-members

Non-members who make their work available to unlicensed Internet sites, rights owners who simply don’t want to join PPL or PRS and others will now need to opt out. Maybe even members of foreign societies who are not members of PPL or PRS (but have royalties collected through them) may need to opt out. All these rights owners must now be identified and in future—how can it work otherwise?—everything they create must be registered by them as out-of-bounds to ECL.

If not they are liable to be badgered repeatedly by an ECL society that wants their work, or even worse keep having to retrieve it from default licensing.

Creative Commons etc.

Creative Commons is often seen as “anti-copyright” but it isn’t, it’s just another set of copyright licenses. To my knowledge none of the CC licenses fit with collection society licensing, so it’s fair to say thousands of CC owners will want to opt out. If not, their rights as non-members are liable to be expropriated by a new ECL society.

Social media and new creators

Many commercially viable works today are created by non-members and people who never considered themselves artists. A viral video for example can earn millions for a non-member on YouTube. They may not be a musician, lyricist or recording rights savvy but their work can be managed and monetised by Google adverts without any PPL or PRS interest. Such work—and the work of thousands of non-viral non-members—might be a prime target for a new ECL. Again, people who never even heard of membership may need to opt out in order to choose the best licensing vehicle for their works, or none. Otherwise they risk being corralled into a default ECL regime which may be equivalent to membership yet worse than non-membership.

Orphan works

Originally orphan works and ECL seemed to overlap, and they still do. The latest but not yet final position is there will be a register of non-exclusive orphan work rights and these will be distinct from non-members works. I look forward to seeing how that is done.

Changes 2: identifying rights owners and their works

Under the existing system only members—opt-ins—need to be identified and it is up to collection societies to track their works. The music industry was slowly moving towards a comprehensive global system of CAE, ISWC and ISRC identifiers. The transcription of paper records has inevitably introduced errors into rights databases and although the system is faulty it works after a fashion.

The new system must identify these new classes of rights holders and their works. I don’t see how this system can function unless their status is formally recorded. That isn’t necessary at the moment.

Consider an example: an extended collective licensing body picks up a YouTube video. There are many possible rights holders (video, composers, phono masters, performers, designers, etc.) but they have no known identifiers. The YouTube poster has a username but that isn’t permanent or controlled and may have no connection to the rights owners. Likewise the work(s) title(s) may be ambiguous, unknown or just wrong. Google’s Content-ID system may identify the work but that system has identified non-music videos as music copyrights so it’s not reliable. The extended collective licensing body must track all these variables and, should the rights owners come forward, assign them and any income to the proper identifiers with their societies or private owners. And that is a very simple example.

There are proposals underway for a Digital Copyright Exchange but we don’t know what it will look like. It could be a new database of hashed or fingerprinted works meta-data tied to standard identifiers. That would be useful but the last I heard it would not be a stand-alone system, rather a network of existing society databases which makes it unlikely to deliver the new requirements.

Will regulators ensure creators are safeguarded or will they nod through a system that implements the will of the government just to get the job done? I think we can reflect on past performance of government as a yardstick.

7 thoughts on “All your © are belong to us, part 2

  1. I’m curious as to why you think that “Google and free content lobby” are the likely drivers and beneficiaries of this? To me it seems that the most likely beneficiaries are the encumbent collecting societies.
    Aside from that I think you’ve made good clarification of a confusing document, thanks.

    • blinddrew –

      Google and other intermediaries have built their businesses on content, based on the assumption they are not liable for copyright infringement. This is a precarious position, and it’s changing, slowly but surely. They face the prospect of changing their business models and shareholder lawsuits.

      They consider it much easier to lobby to destroy creator’s rights, with collateral damage across many markets, than do what entrepreurs are supposed to do, and innovate.

      • Everyman, I’m not convinced by your statements I’m afraid.
        Firstly, I don’t think the intermediaries should be liable for the actions of their users – the alternative is a system where censorship in practically any form is as easy as a letter from a lawyer. I wouldn’t trade what we have for North Korea or China’s version of the web, even if the censorship was performed by private organisations rather than the government.
        Secondly I don’t think that position is under as much threat as you suggest. SOPA and PIPA have been dropped, ACTA has just been rejected in the EU, CETA is coming under similar scrutiny now and the TPP has already been forced to make concessions from its original hardline stance. The internet is enabling people to become more involved in the politics that affect it and people are standing up for the tools and freedoms that they enjoy.
        I agree that google may not be being as innovative as they were but again I disagree on the idea that they’re destroying creators rights, look into Content ID and google play, or check out the amount of money paid out by youtube.
        And they seem to be doing this without requiring the actual creators to surrender their rights in the process.

  2. The main reason for that is the much quoted Cameron/Tory quote that “Google could not have started up in the UK” (although it turns out Google didn’t say that, in public at least). Among other things that’s why the Hargreaves Review which led to these changes was known informally as the Google Review.

    Google also has plenty of previous in this regard: scanning copyright works and making them available to search, not to mention facilitating access to a mass of infringing material and refusing to adjust their search results (although they routinely fix their search results in their own favour apparently without any concern).

    Besides that you have many “free MP3” sites and other barely legal sites like Grooveshark who simply want more content. Of course, it remains to be seen whether the conditions suggested in these proposals—such as parity with other collecting societies—would actually make things any easier for them.

    I am preparing another blog at the moment with looks at the need for modernising access to content and who actually asked for these changes. Consumer Focus suggests consumers stand to gain but don’t seem to have any consumer requests or suggestions about extended licensing.

    Of course, the incumbents do stand to gain a nice windfall and both PRS and PPL have indicated they are in favour but to my knowledge they didn’t campaign for a “modernisation of copyright” in the same way Google did.

    • Hmm, I always thought that the “google couldn’t have started in the UK” was a patent reference. There’s plenty of evidence to suggest that there’s serious brakes being applied with software patents. Not sure how copyright would have affected google in the uk.
      I don’t, from my current reading, see how the proposals would make any difference to the status quo though? There will still be a mix of legal and illegal content, it will still be available, and search engines will point to it. Think I’m being dumb but I don’t see where ECLs come into it?

      • Well, to be honest I don’t think much of the rhetoric stands up to logical scrutiny. As it turns out Google has had no problem operating in the UK so that was a red herring from the point of view of copyright.

        The reasoning for ECL put forward in government proposals is that content which is not available under a collective license prevents the industry from earning a lot of money. They estimate £billions of new business will now be unlocked.

        It remains to be seen whether industry (and the champions of ECL, the IPO and Consumer Focus) remain happy with the proposals as they stand throughout the new legislation. To their credit the government says they want a level playing field, so that ECL will literally just bring more content into the existing licensing ecology.

        However, in my experience the big web commerce companies don’t want that. They don’t live in the same commercial ecology as, say, the BBC. If Google had always been willing to pay market rates for content this debate would never have come up.

        But it’s possible there will be no change in music, or other individual content sectors if there’s no appetite for it. I’m still perplexed about which sectors are deemed to want ECL or to benefit from it so it’ll be interesting to see how it develops.

        • Well, in a way i’m glad it’s not just me being dumb, but ultimately it feels like this kind of confusion and complexity only works for organisations that take advantage of consumers or users who don’t have intimate knowledge of the process and rules.
          A parallel that springs to mind is rail ticket pricing.
          I’m still not sure how “market” rate will be determined, it seems like the market rate for a lot of this content is “free” and I can’t help but feel that for the very old stuff it should be. Allowing major vested interests to determine rates sounds a lot like price fixing.
          Still, if we’ve got the free lobby on one side and the rights holders on the other there should be a healthy pull both ways…
          Now I just need to get on with writing up my analysis of the ECL stuff.

          P.S. I’ve long ago given up believing any financial numbers when it comes to IP!

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